Pennsylvania Family Law : Pennsylvania Divorce Lawyer & Attorney : PA Family Law Blog : Fox Rothschild Law Firm : Family Law Serving Philadelphia, Pittsburgh, Bucks County, Montgomery County, Chester County

As practitioners we advise clients that if they cohabit after they have been divorced they will most likely not receive alimony. 23 Pa.C.S.A. § 3706 provides that, “no Petitioner is entitled to receive an award of alimony where the Petitioner, subsequent to the divorce pursuant to which alimony is being sought, has entered into cohabitation with a person of the opposite sex who is not a member of the family of the Petitioner within the degrees of consanguinity.”  It is important to note however that in cases resolved by property settlement agreements, this section applies only if the agreement contains language that cohabitation terminates the alimony obligation. Van Kirk vs. Van Kirk, 336 Pa.Super. 502, 485 A.2d 1194 (1984). 

What determines whether parties are cohabitating? The Divorce Code fails to define cohabitation. However, the courts have generally defined cohabitation as “two persons of the opposite sex resid[ing] together in manner of husband and wife, mutually assuming those rights and duties usually attendant upon the marriage relationship. Cohabitation may be shown by evidence of financial, social and sexual interdependence, by a sharing of the same residence, and by other means.” Miller v. Miller, 508 A.2d 550, (1986). This case appears to follow some earlier trial court precedent such as Soby v. Soby, where the Montgomery County Court of Common Please said that alimony would not terminate because of the amount time a person spends with another unrelated adult, but needed to be supplemented by a showing of support in a financial sense. 113 Mont. Co. L. R. 406 (1983)

When an issue of cohabitation arises, it becomes a matter of evidence. How much evidence can be obtained to show that the alleged “cohabitors” are in fact linked financially, socially, and sexually. Interestingly, the cases do not clearly articulate how much evidence is enough to prove cohabitation. So, when advising your client regarding cohabitation, it is important to make sure that they understand the “haziness” of the definition of cohabitation, and the difficulty with proving (or disproving) cohabitation. 

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The following is my "Top 7" list of "family law misconceptions" that I frequently hear from new or prospective clients.  The list is by no means exhaustive and assumes that there is no pre or post-nuptial agreement in place which might already address the issue.  Likewise, as other states have different laws and procedures, this list is limited to Pennsylvania.

1. “There is no alimony in Pennsylvania”.  I am constantly amazed at how many new clients believe that alimony does not exist in Pennsylvania.  Let me set the record straight: alimony is alive and kicking in Pennsylvania.  Section 3701(a) of the Pennsylvania Divorce Code provides that “[w]here a divorce decree has been entered, the court may allow alimony, as it deems reasonable, to either party only if it finds that alimony is necessary.”
2. “If my spouse committed adultery, I will not be obligated to pay him/her alimony”.  Of the clients who are aware of the existence of alimony in Pennsylvania, many believe that adultery is a bar to a claim for alimony.  Marital misconduct occurring during marriage is only one of 17 factors under §3701(b) of the Divorce Code to be considered in determining whether alimony is necessary and in determining the nature, amount, duration and manner of payment of alimony.  It is not a bar, just a factor.
3. “It only takes 90 days to get a divorce”.  Under even the best possible circumstances, it will take more than 90 days from the date of filing a divorce complaint until the entry of the decree.  I usually tell people that the best case scenario is 4½ to 5 months, assuming that both parties fully cooperate, there is a signed agreement disposing of all economic issues, the court is not backed up,  and, most importantly, the stars are in perfect alignment.  The worst case scenario could be several years or more depending upon the circumstances.
4. “My spouse is not entitled to any of my pension”.  Many clients believe that his/her spouse is not entitled to any portion of their pension since they worked for it.  To the contrary, if the pension was acquired or increased in value during the marriage, then it is marital property (in full or in part) and the other spouse has a claim to it.
5. “My spouse is not entitled to any asset that is titled solely in my name”.  How an asset is titled has very little to do with whether or not it is subject to division and/or distribution in a divorce.  The general rule is that if an asset is acquired or increases in value during marriage, then it is marital property (in full or in part) and the other spouse has a claim to it.
6. “The marital property gets split 50/50”.  While marital property is often divided between the parties on a 50/50 (equal) basis, the circumstances may warrant a disproportionate division.  Pennsylvania law requires that the marital property be divided in an equitable fashion based upon a consideration of 11 factors set forth in §3502 of the Divorce Code.  "Equitable” means fair, not equal.  Therefore, if the equities weigh in favor of one spouse, he or she will likely receive more than 50% of the marital property.
7. “If I quit my job, I will not have to pay support”.  This is one of the more popular misconceptions.  Support obligations (i.e. support for a child or spouse) are determined based upon actual income or earning capacity.  If someone quits his or her job without an extremely good reason, their support obligation will be determined or will continue based on their established earning capacity.  A frequent response that I hear when I tell people this is, “then they can just put me in jail.”  That, however, it not a misconception for someone who deliberately takes action to avoid their support obligations.  It may take some time, but under the right conditions, jail may be a reality.
   

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I just saw an article on CNN about a man in Seminole County, Florida who is required to pay lifetime alimony to his former spouse, a woman who now has undergone a sex change operation and is living as a man.  I'm scratching my head about this and am not sure that I have an opinion.  The legal expert retained by the local television news station was of the opinion that there was no way that the order for lifetime alimony should be modified or terminated, as the payment of alimony was based upon the parties' relationship prior to divorce, and nothing that occurred after divorce should matter.  Interesting, to say the least.

The video news story can be found on the CNN Law Page today.

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